family law in Thailand for overseas born child

[SamHuaHin]

Hi again

I wonder if anyone esle has some current facts about family law that applies to my specific case.

I have a 5yo Son born in Australia, my partner of 6 years and I split in January and of am wanting to return to live in Phuket as my Father and Sister live there permanently.

The facts and context:

- I am now living in Australia, but used to live in Thailand for 10 years until a few years ago.

- I am Australian, my ex-is Thai, we are not married but lived as DeFacto/CommonLaw for 6 years both in Thailand and Australia

- We lived in Thailand 3 years and here 3 years, she is now here and has Permanent Residency (PR).

- My Son is 5yo and was born here, and is Australian.

- He has Australian Passport, I have it in my posession

- We seperated in January this year, she is still here living with someone else

- I have my Son for 5 days Tue-Sat, she has him 2 days Sun/Mon.

- We have no formal court Parenting Agreement in place, we have just agreed to this arrangement at this time.

I want to return to live in Phuket in January, my ex is planning to stay in Australia for one more year , but has agreed for me and our Son to move back to Thailand.

She says she will go for a 2 week holiday as soon I book a flight, as she want to visit her family and also take him to them for a week.

My concern is that when in Thailand I do not have any Parental rights, as I have been told that a Thai Mother always has full and definite custody of a child,

and also as we are not married under Thai Law, that I will have no rights whatsoever when in Thailand ie. biological Father means little (as per UK law)

In Australia its possible to do whats called Parenting Consent Orders and have them submitted to the courts which is a legal agreement on the custody agreement.

I am assuming there is a similar thing in Thailand?

And as I am sure I will need the Australian Parenting Consent Agreement for the Courts in Thailand, I am now trying to get these in place here, but she is reluctant to sign anything.

My concern is that when I come to Thailand with my son in January planning to submit some documents, that I may have a problem (or she can make it so) then ie., she may excercise some Tha laws allowing her to take him from me there and then, or that she can stop me from returning to Australia then or later (I should not I think as he will have already travelled alone with me form Australian to Thailand as can see from Ticket and PP stamps, but then who knows in the amazing land of LOS!)

If this is the case then I will not come until all documents are passed in the court, even if I need to come alone first to do this.

Any advise base don real experiences or first hand accounts from friend much appreciated.

Sam

[SlyAnimal]

I'm going to move this to the family section, as that would be much more appropriate for this thread.

[Mario2008]

Under Thai law you do not have any rights, until you legitimize the child. (In essence formally recognized the child as yours). The question is if you formally legitimized the child as yours or not. If you did, you are legally the father of the child and have the same rights as the mother.

If not, the mother has sole custody of the child and can at any moment change the place the child stays.

If you did legitimize the child it is possible for the mother to ask for a change of any agreement you might have. If that will be successful is another matter, but she could ask the court to not allow the child to leave the country. Given your plan to live in Thailand that would not be a problem.

Formally legitimize the child first.

[SamHuaHin]

Thanks for that info, some prudent googling came up with a wealth of good info, such as:

http://thailawonline.com/en/family/children/custody-of-a-child-thailand.html

So I now understand there are 2 steps:

(a) being recognised as Legal Father (3 ways to do this) and
( getting Parental Rights (court seems only way)

For recognition as the Legal Father (Legitimisation of Child) the options seem to be:

1. marriage - not an option now :-)
2. registration at amphur - needs Mother agreement, and Childs agreement if over 7, sometime less

3. petition courts - using various proof such as photos, documents, DNS tests etc, many options possible

The problem is, this will require me being there with my Son *before* I have any legal protection or rights.

I have asked a few Thai Lawyers via email, all have said it needs Court and will cost 100k-150k BHT, very steep for me at this time, as also have the costs of a relocation back to Thailand in Feb 2015.

In my 8 years in Thailand I have learned that most official things dont need a Lawyer at all, just a trusted local Thai to help do forms and speak to local official.

Is it possible to do this yourself?

Has anyone done this?

For the Parental Rights

I cant find much online but the Lawyer that repleid said I will need the Australian Parenting Agreement (we dont have one as we verbally agreed with no problems - me 5 days her 2 days), as well as supporting documents from Centrelink (social security) re Parenting Payments, school enrollment forms, and other stuff that may help.

Has anyone experience with gaininy Parental Rights via the Courts?

What did you need to provide to the court?

DId the ex need to be there?

Did the Child need to be there?

how long did it take?

What did it cost?

Also, if I do have to go to Thailand before anything is in place in order to attend Court etc, how open am I to her excercising her still current full rights there and then?
ie. can she try toi take him form me as soon as I arrive and before the Court hearing?
Can she stop me returning with my Son to Australia?

Any help really appreciated, as I dont have much time left to get something in place, or I will have to delay the move, difficult do do as I have project work starting there in March.

Sam

[Mario2008]

With becomming the legal father you automatically get parental rights, unless the mother onjects to this.

The child always needs to agree for legitimisation through the courts, that is the reason why most amphurs require the child to be at least 7 years old.

Yes, if you can read and write Thai it is possible to do it yourself. With a lawyer the costs depend on whether the mother agrees and cooperates or not. Without cooperation it takes a much longer time.

The mother doesn't need to be there, but does need to be called up to appear and gets several opportunities to do so. (That is why it takes longer and thus costs more).

Social services make a report for the court and will want to talk to both child and mother to advise the judge about what is in the intrest of the child.

[SamHuaHin]

Mario,

Thanks for taking the time to explain.

From what I have read I understood the the Legitimisation process is to have me recognised as Legal Farther, but that it doesnt give me Parental Rights beyond that, but you are saying it does give me equal rights?

I know that in Australia due to the young age of the Child, most of the time the Mother gets heavily favoured, is that the case there also? (that not been to case for me as I have been the "Primary Care" giver past 2 years ie. doing mealtimes, baths, school dropoff/pickups etc)

My main concern is - what happens in the interim period between when I arrive with him and the court hearings? ie. during this time, I still have no legal rights, and I suspect I am totally vulnerable during this time.

How can I be protected when I first arrive?

Sam

[SamHuaHin]

Also, there has been a new development.

When we seperated in Jan this year I had legal advise and learned that she could not legally take him from Australia, as she does not have custody,

I say legally, as if she had had his passport she could in fact take him, but would be breaking the law (not that it matters once she has done it)

I was also advised she is unable to obtain another Australia Passport without my consent, and was advised to hold his passport.

However, I learned that if she was able to get hold of a Thai Passport for his then it would be easy for her to leave with him (also illegally), so I immediately contacted the Thai Embassy here and they advised they would not issue a Thai Passport for Child unless they sighted verified court documents giving her sole custody, but they did warn that due to corruption, she may be able to get the Thai passport if she goes back to Thailand. As we know connections and bribery make anything possible there.

She has just advised me she has to go back to Thailand this Tue for an "emergency", I asked if this was now instead of the planned trip in MArch, she said no she was still going then also.

I asked was anyone in the Family sick or what was the reason, but she would not tell me why, so its *very* suspicious as to why the sudden trip back, esp. given money is tight for her.

So my next question is - is it possible to find out if a Thai Passport has been requested/issued for my Son?

As I am not the Legal Father in Thailand, i see no precedent for Thai Authorities to have to tell me.

Any comments appreciated!

Thanks

Sam

ps. should I post these questions here ot in the LAwyer section?

[Mario2008]

Thai judges are not biased and will take the wellbeing of the child as their prime concern, not if someone is a foreigner or not.

Your legal advice is correct, but if it is a verbal agreement about who has custody there is the problem of proof as to what was actually agreed upon. The child was born in Thailand and the records in Thailand show that she is not married, based upon that she could get a passport for the child, but the child will have to attend for the picture. So she cannot get a Thai passport in Thailand without the child being present.

I would formalize the agreement in a written document, giving you a much stronger position.

[SamHuaHin]

Yes I have read elsewhere that the Thai Judges are very fair on matter of children, good to know.

Actually my Son was born here in Australia, not Thailand, if that matter re his Thai Passport.

So you are saying that she cant get a Thai Passport without our Son actually being physically there?

Thats good to know, a big sigh of reliefe this end...

Also when you say I need to formalise the custody agreement, do you mean here or in Thailand?

We have no official agreement here, as she was ok with just 2 days a week, and I with the 5.

Do I need to get the Parental Agreement in place here before doing anything in Thailand ie. as a source document/precedent?

Or do I just need to do this in Thailand ie. with Thai Lawyers

[SamHuaHin]

Mario you are really helpful and seem to really know this stuff, have you been through it yourself? or how do you know it so well?

[Mario2008]

That your son was born in Australia might be a big difference, as then you would legitimize the child under Australian law and not Thai law. So the question for your lawyer would be if you have legitimize the child according to Australian law, if so you are the legal father and that is recognized by Thailand.

Since all are in Australia I would get the written agreement in Australia, not Thailand. You would not need to do anything in Thailand regarding legitimization or custody agreement.

That is not to say the mother could not challenge the agreement in Thailand, but she would need to provide reasons as to why she wants to change it and show that would be in the best interest of the child.

I have worked for a children's right organization.

[SamHuaHin]

Re legal Father, so you are saying that I do not need to do anything in Thailand to get legal rights as his Father, IF I have these legal rights in Australia?

This is not what I have read elsewhere or what the Thai Lawyer is telling me - they are saying the legal rights for both Father rights and Parenting Agreement in place in Australia is not valid in Thailand, and we need to do a Thai version of same via the courts, as a cost of 150k (with Legitimisation process) or 100k without.

Now I am totally confused re whats needed.

[SamHuaHin]

re "Since all are in Australia I would get the written agreement in Australia, not Thailand. You would not need to do anything in Thailand regarding legitimization or custody agreement."

I dont think this is the case, under Thai Law I am not the legal Father until either a consensual declaration is done at the local Amphur with the ex and my SOn, OR a court judgement is made to that effect.

Pretty sure it doesnt matter whats in place in Australia *legally* - sure the courtts there would consider the Australian status if it went to court, and would probably be heavily influenced by it, but it doesnt have any legal status on its own.

What makes you think an Australian legal status hold legal status in Thailand?

[Mario2008]

A marriage in Australia also holds in Thailand, that will be the same with a formal legitimization of the child under Australian law.

If the arrangement regarding who takes care of the child is another matter.

Choose a law firm that has a good record regarding family law, not a law firm that also does family law on the side. Contact for instance isaanlawyers. They have a good reputation regarding family law.